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THE    STKUGGLE    FOR    RELIGIOUS    LIBERTY    IN 

NORTH    CAROLINA,    WITH    SPECIAL 

REFERENCE  TO  THE  JEWS. 

By  Leon  Huhneb,  M.  A.,  LL.  B. 


Reprinted  from 

Publications  of  the 

American  Jewish  Historical  Society, 

No.  16,  1907. 


THE    STKUGGLE    FOR    RELIGIOUS    LIBERTY    IN 

NORTH     CAROLINA,    WITH    SPECIAL 

REFERENCE  TO  THE  JEWS. 

By  Leon  Huhneb,  M.  A.,  LL.  B. 

The  old  proverb  that  prejudice  is  the  daughter  of  ignorance 
is  strikingly  illustrated  in  the  history  of  religious  liberty  in 
the  original  Colonies.  Those  Colonies  where  Jews  had  settled 
in  numbers  were  among  the  first  to  adopt  the  principle  of  civil 
equality,  while  those  where  the  Jew  was  known  little  more 
than  in  name  were  the  last  to  accept  it. 

In  justice  it  must  be  said,  however,  that  the  great  principle 
of  liberty  of  conscience  had  been  adopted  by  practically  all 
the  original  States  even  prior  to  the  Revolution.  Catholics, 
Jews,  Mahommedans  and  even  heathens  were  alike  protected 
in  their  respective  beliefs. 

Nevertheless,  a  few  of  the  original  States  prescribed  a 
religious  test  for  office.  In  these,  Catholics,  Jews,  and  sev- 
eral other  sects  were  precluded  from  attaining  political  honors. 

In  the  course  of  time  the  injustice  of  a  religious  test  was 
generally  recognized  and  swept  away.  Two  States  alone  con- 
tinued to  cling  tenaciously  to  this  relic  of  bigotry.  Neither 
had  any  appreciable  Jewish  population,  nor  could  either  boast 
a  representative  congregation,  even  half  a  century  after  the 
Declaration  of  Independence.  The  States  referred  to  are  New 
Hampshire 1  and  North  Carolina,  and  the  present  paper  will 

1  New  Hampshire  has  the  unenviable  distinction  of  having  been 
the  last  of  the  thirteen  original  States  to  grant  political  equality 
to  the  Jews.  Prior  to  1876  Jews  and  Catholics  were  excluded 
from  certain  offices.  (Governor,  House  of  Representatives,  Sen- 
ate. )  See  "  The  Constitution  of  New  Hampshire  as  amended  by 
the  Constitutional  Convention,  1876."  (Concord,  1877).  It  was 
probably  the  only  State  in  the  Union,  at  that  late  date,  where  this 
was  the  case.  37 


38  American  Jewish  Historical  Society. 

be  devoted  to  a  sketch  of  the  long  and  interesting  struggle  for 
religious  liberty  within  the  latter. 

North  Carolina  formed  part  of  the  original  grant  made  by 
Charles  II  to  a  number  of  noblemen,  who  included  the  famous 
Earl  of  Shaftesbury  and  Lord  Berkeley.  The  original  consti- 
tution was  drawn  up  by  John  Locke,  the  famous  philosopher, 
and  provided  in  the  very  broadest  terms,  for  liberty  of 
conscience.2 

Early  in  the  18th  century,  however,  the  Episcopal  Church 
became  the  established  church  in  fact  as  well  as  in  law.3  While 
there  was  religious  toleration  of  Dissenters  there  was  not 
religious  liberty  in  its  broadest  sense;4  the  colony  was  one  of 
the  very  few  that  had  an  established  church,  and  that  estab- 
lishment made  its  influence  felt  down  to  the  time  of  its 
abolition  just  prior  to  the  American  Revolution.  All  citizens 
were  required  to  pay  toward  its  support,  dissenting  clergymen 
were  denied  the  privilege  of  performing  even  the  marriage 

2  See  Stephen  Beauregard  Weeks,  "  The  Religious  Development 
in  the  Province  of  North  Carolina,"  in  Johns  Hopkins  University 
Studies,  10th  series,  Vols.  V  and  VI,  pp.  13,  39.  Also,  B.  W. 
Caruthers,  "  A  Sketch  of  the  Life  and  Character  of  the  Rev.  David 
Caldwell,"  Greensborough,  N.  C,  1842,  p.  54. 

For  a  detailed  discussion  of  Locke's  Constitution  and  its  pro- 
visions, see  article  by  the  present  writer  on  "  The  Jews  of  South 
Carolina  from  the  Earliest  Settlement  to  the  End  of  the  Ameri- 
can Revolution,"  Publ.  Amer.  J.  Hist.  Soc,  Vol.  12,  p.  39,  etc., 
where  additional  authorities  are  given.  See  also,  The  North 
Carolina  Hist,  and  Genealogical  Register,  Vol.  3,  No.  1,  p.  59. 

3  In  the  autumn  of  1701  the  Assembly  passed  an  act  making  the 
Church  of  England  the  established  church  of  the  Colony.  Stephen 
B.  Weeks,  "  The  Religious  Development  in  the  Province  of  North 
Carolina,"  supra,  pp.  36,  39. 

4 "  Beginning  with  1701,  the  Episcopal  Church  was  for  three- 
quarters  of  a  century  the  legal  church  in  North  Carolina,  and  while 
there  was  toleration  for  dissenters,  there  was  not  freedom  of  con- 
science and  soul  liberty  in  the  absolute  sense  of  those  terms." 
S.  B.  Weeks',  supra,  p.  1,  and  on  the  same  page,  the  writer  states 
"  There  was  an  established  church,  there  was  positive  persecution, 
there  was  not  religious  freedom." 


Religious  Liberty  in  North  Carolina — Huhner.        39 

ceremony.  The  latter  privilege  was  finally  granted,  but  only 
under  certain  burdensome  restrictions.  Governor  Tryon,  the 
King's  representative,  frankly  admits  "  That  by  many  of  the 
inhabitants,  the  Establishment  was  regarded  as  even  more 
oppressive  than  the  Stamp  Act." B 

The  Dissenters  had  kept  up  a  vigorous  fight  against  the 
Establishment ; 6  but  no  sooner  had  their  efforts  been  crowned 
with  success,  than  these  very  men,  who  had  fought  their  own 
cause  so  valiantly,  became  the  opponents  of  that  complete 
religious  liberty  which  now  lies  at  the  very  foundation  of 
American  institutions. 

They  took  an  uncompromising  and  decided  stand  against 
the  complete  emancipation  of  Eoman  Catholics,  Jews,  and 
others.  The  remark  once  made  concerning  the  Puritans, 
might  indeed  be  appropriately  applied  here.  "  These  men 
loved  Eeligious  Liberty  so  much,  that  they  desired  to  keep  it 
all  for  themselves."  7 

Shortly  after  the  adoption  of  the  Declaration  of  Independ- 
ence the  Congress  of  the  State  of  ISTorth  Carolina,  assembled 
at  Halifax,  December  17,  1776,  "  for  the  purpose  of  establish- 
ing a  Constitution  or  form  of  government."  8  Two  of  the  lead- 
ing subjects  in  the  minds  of  the  dominant  faction  were  first, 
the  prevention  of  an  established  church,  and  second,  the  ex- 
clusion of  Roman  Catholics  from  political  office. 

In  addition  to  the  prejudice  already  existing,  it  hap- 
pened that  several  of  the  members  of  the  Convention  were 

5  Ibid.,  p.  11,  etc.     See  also  p.  65. 

6  Ibid.,  p.  65.  See  also,  S.  B.  Weeks,  "  Church  and  State  in  North 
Carolina,"  in  Johns  Hopkins  University  Studies,  11th  series,  Vols. 
V-VI. 

7 "  The  persecuted  Pilgrims  of  Massachusetts  were  such  zealous 
lovers  of  civil  and  religious  freedom,  that  they  would  fain  keep 
it  all  to  themselves."  Address  of  Hon.  William  Gaston,  in  Pro- 
ceedings and  Debates  of  the  Convention  of  North  Carolina,  1835 
(Raleigh,  1836),  p.  290. 

8  The  Public  Acts  of  the  General  Assembly  of  North  Carolina, 
revised  bv  Francois-Xavier  Martin,  Newbern,  1804,  Vol.  1,  p.  191. 


40  American  Jewish  Historical  Society. 

clergymen  who  were  uncompromising  on  both  subjects  re- 
ferred to.  Prominently  among  these  might  be  mentioned  the 
Rev.  David  Caldwell,  a  Presbyterian  divine,  and  one  of  the 
most  influential  men  in  that  historic  assembly. 

As  a  matter  of  justice,  it  must  be  said,  however,  that  the 
Convention  unanimously  recognized,  and  to  the  fullest  extent, 
the  right  of  every  individual  to  worship  in  his  own  way.  The 
provisions  of  the  Constitution  of  1776  provided  for  liberty 
of  worship,  and  even  excluded  clergymen  from  being  mem- 
bers of  the  Senate,  House  of  Commons,  or  Council  df 
State." 

The  great  and  only  stain  upon  the  proceedings  of  this  Con- 
vention was  its  illiberality  when  the  question  of  holding  office 
came  up  for  discussion.  The  objectionable  clause  adopted, 
was  the  product  of  clerical  influence,  and  to  the  Eev.  Mr. 
Caldwell  is  attributed  the  doubtful  honor  of  having  framed 
and  fathered  Section  32,  which  was  incorporated  in  the  Con- 
stitution.10    That  section  reads  as  follows : 

"  That  no  person  who  shall  deny  the  being  of  God  or  the 

9  Ibid.,  p.  191.  "  A  Declaration  of  Rights  made  by  the  repre- 
sentatives of  the  Freemen  of  the  State  of  North  Carolina." 

Section  XIX  provided  "  That  all  men  have  a  natural  and  in- 
alienable right  to  worship  Almighty  God  according  to  the  dic- 
tates of  their  own  conscience." 

Section  XXXI  prohibited  clergymen,  while  exercising  their  pas- 
toral function,  from  being  members  of  the  Senate,  House  of  Com- 
mons, or  Council  of  State. 

Section  XXXIV  provided  "  That  there  shall  be  no  establish- 
ment of  any  one  religious  church  in  this  State  in  preference  to 
any  other;  neither  shall  any  person  on  any  pretence  whatsoever 
be  compelled  to  attend  any  place  of  worship  contrary  to  his  own 
faith  or  judgment,  nor  be  obliged  to  pay  for  the  purchase  of  any 
glebe  or  the  building  of  any  house  of  worship  or  for  the  mainte- 
nance of  any  minister  or  ministry  contrary  to  what  he  believes 
right  ....  but  all  persons  shall  be  at  liberty  to  exercise  their 
own  mode  of  worship,"  etc.     (Constitution.    Ibid.,  p.  195.) 

10  W.  H.  Foote,  "  Sketches  of  North  Carolina,"  N.  Y.,  1846,  p.  240. 
See  also,  "  A  Sketch  of  the  Life  and  Character  of  the  Rev.  David 


Religious  Liberty  in  North  Carolina — Huhner.        41 

truth  of  the  Protestant  religion  or  the  Divine  Authority,  either 
of  the  Old  or  jSTew  Testament,  or  who  shall  hold  religious  prin- 
ciples incompatible  with  the  freedom  and  safety  of  the  State, 
shall  be  capable  of  holding  any  office  or  place  of  trust  or  profit 
in  the  Civil  Department  within  this  State.11 

This  section  was  doubtless  aimed  primarily  at  Roman 
Catholics.  The  prohibition  being  a  sweeping  one,  however, 
necessarily  included  Jews,  Quakers,  Mohammedans,  Deists, 
and  others. 

But  it  would  be  unfair  to  say,  that  the  views  embodied  in 
Section  32  went  unchallenged.  Religious  liberty,  in  its  broad- 
est sense,  had  indeed  powerful  champions  in  the  Convention 
and,  though  these  were  in  the  minority,  they  included  the  very 
greatest  sons  of  North  Carolina.  James  Iredell,12  and  Gov- 
ernor Johnston,13  need  only  be  mentioned  in  this  connection. 

Caldwell,  D.D.,"  by  the  Rev.  E.  W.  Caruthers,  A.  M.,  Greensbor- 
ough,  N.  C,  1842,  pp.  190-191.  Also  p.  248.  In  this  connection 
Caruthers  makes  the  following  remark:  "  It  is  said,  I  know  not 
on  what  authority,  that  he  drafted  the  article  which  excludes 
ministers  of  the  Gospel  as  well  as  one  which  excluded  Roman 
Catholics  from  holding  offices  under  the  government;  and  if  so, 
it  is  an  evidence,  not  only  of  his  strong  attachment  to  liberty, 
but  of  his  vigilance  in  guarding  against  everything  which  might 
lead  to  a  union  of  Church  and  State." 

11  The  Public  Acts  of  the  General  Assembly  of  North  Carolina, 
revised  by  Francois-Xavier  Martin,  Newbern,  1804,  Vol.  I,  p.  195,  etc. 

12  Iredell  was  subsequently  the  leader  of  the  Federalists  in  North 
Carolina,  and  in  1790  was  appointed  by  Washington  an  associate 
justice  of  the  U.  S.  Supreme  Court.  Iredell  County  was  named 
after  him  in  1788.     See  Appleton's  Cyc.  of  Amer.  Biog.,  Vol.  III. 

13  Samuel  Johnston  (1733-1816),  one  of  the  most  distinguished 
Revolutionary  patriots  of  North  Carolina.  He  was  a  member  of 
the  first  two  Provincial  Congresses  and  presided  over  the  third 
and  fourth.  In  1775  he  was  elected  chairman  of  the  Provincial 
Council  and  virtually  became  Governor  of  the  State.  Member  of 
the  Continental  Congress  of  1781-2,  and  in  1788  became  Governor 
of  the  State.  He  was  president  of  the  convention  that  adopted 
the  Federal  Constitution,  and  later  became  a  U.  S.  Senator.  See 
Appleton's  Cyc.  of  Amer.  Biog.,  Vol.  III. 


42  American  Jewish  Historical  Society. 

The  spirit  which  dominated  the  Convention  in  1776  found 
its  way  into  the  Federal  Convention  of  1787  as  well.  Though 
"  Elliot's  Debates  "  inform  us  that  the  clause  abolishing  re- 
ligious tests  in  the  Federal  Constitution  passed  unanimously/4 
Madison  expressly  reports  that  North  Carolina  alone  voted 
against  it.15 

When  the  Federal  Constitution  was  submitted  to  North 
Carolina  for  adoption,  the  whole  subject  was  again  brought 
to  the  front  for  fuller  and  more  thorough  discussion. 

The  State  Convention  convened  at  Hillsborough,  July  21, 
1788.18  It  had  been  preceded  by  considerable  agitation,  be- 
cause it  was  strongly  objected  that  the  instrument  contained 
no  guarantee  for  religious  freedom.  So  high  did  the  excite- 
ment run  that  pamphlets  were  actually  circulated,  pointing 
out  in  all  seriousness  the  possible  danger  of  the  Pope  being 
elected  President,  should  the  Constitution  be  adopted.  A 
pamphlet  of  this  kind  was  even  most  gravely  discussed  by 
various  speakers  in  the  Convention.17 

"Elliot's  Debates,  Wash.,  1836,  Vol.  I,  p.  277. 

15  See  also  Debates  on  the  Adoption  of  the  Federal  Constitution 
as  reported  by  James  Madison,  Wash.,  1845,  Vol.  V,  p.  498. 

18 "  For  the  purpose  of  deliberating  and  determining  on  the 
Constitution  recommended  by  the  General  Convention  at  Phila- 
delphia the  17th  day  of  September,  1787."  See  Proceedings  and 
Debates  of  the  Convention  of  North  Carolina,  etc.,  Edenton, 
MDCCLXXXIX. 

17  Ibid.,  p.  222,  etc.  Iredell  in  the  course  of  his  address  refers 
to  a  pamphlet  wherein  "  the  author  states  as  a  very  serious 
danger  that  the  Pope  of  Rome  might  be  elected  President."  "  I 
confess,"  says  Iredell,  "  this  never  struck  me  before,  and  if  the 
author  had  read  all  the  qualifications  of  a  President,  perhaps  his 
fears  might  have  been  quieted." 

See  also  Governor  Johnston's  address.     Ibid.,  p.  225,  etc. 

Also  Mr.  Lancaster's  Address,  ibid.,  p.  242,  where  the  following 
appears :  "  Let  us  remember  that  we  form  a  government  for 
millions  not  yet  in  existence.  ...  In  the  course  of  four  or  nve 
hundred  years,  I  do  not  know  how  it  will  work.  This  is  most 
certain,  that  Papists  may  occupy  that  chair,  and  Mahometans 
may  take  it.     I  see  nothing  against  it."     See  also  ibid.,  p.  239. 


Religious  Liberty  in  North  Carolina — Hiihner.        43 

On  July  30, 1788,  the  Eev.  Henry  Abbot,  a  Baptist  minister, 
and  member  of  the  Convention,  opened  the  discussion.  After 
airing  his  fears  of  Roman  Catholics,18  he  said :  "  The  ex- 
clusion of  religious  tests  is  by  many  thought  dangerous  and 
impolitic.  They  suppose  that  if  there  be  no  religious  test 
required,  Pagans,  Deists,  and  Mahometans  might  obtain 
offices  among  us,  and  that  the  Senate  and  Eepresentatives 
might  all  be  Pagans."  1M 

Iredell,  one  of  the  most  distinguished  members,  replied  in 
a  splendid  address  opposing  all  religious  qualifications  for 
office.20 

18 Ibid.,  p.  217.  The  following  occurs  in  his  address:  "It  is 
feared  by  some  people  that  by  the  power  of  making  treaties,  they 
(the  government)  might  make  a  treaty  engaging  with  foreign 
powers  to  adopt  the  Roman  Catholic  religion  in  the  United  States, 
which  would  prevent  the  people  from  worshipping  God  according 

to  their  own  consciences Many  wish  to  know  what  religion 

shall  be  established.  I  believe  a  majority  of  the  community  are 
Presbyterians.  I  am  for  my  part  against  any  exclusive  establish- 
ment, but  if  there  were  any,  I  would  prefer  the  Episcopal." 

19  Proceedings  and  Debates  of  the  Convention  of  North  Carolina, 
etc.,  Edenton  MDCCLXXXIX,  p.  218.  Continuing,  the  speaker 
said :  "  Every  person  employed  by  the  General  and  State  Gov- 
ernments is  to  take  an  oath  to  support  the  former.  Some  are 
desirous  to  know  how  and  by  whom  they  are  to  swear,  since  no 
religious  tests  are  required,  whether  they  are  to  swear  by  Jupiter, 
Minerva,  Proserpine  or  Pluto.  We  ought  to  be  suspicious  of  our 
liberties,"  etc. 

20 Ibid.,  p.  218,  etc.  "Every  person,"  said  he,  "in  the  least 
conversant  in  the  history  of  mankind,  knows  what  dreadful  mis- 
chiefs have  been  committed  by  religious  persecutions.  Under  the 
colour  of  religious  tests  the  utmost  cruelties  have  been  exercised. 
Those  in  power  have  generally  considered  all  wisdom  centered  in 
themselves,  that  they  alone  had  the  right  to  dictate  to  the  rest  of 
mankind,  and  that  all  opposition  to  their  tenets  was  profane  and 
impious.     The  consequence  of  this  intolerant  spirit  has  been,  that 

each  church  has  in  turn  set  itself  up  against  every  other 

America  has  set  an  example  to  mankind  to  think  more  modestly 
and  reasonably;  that  a  man  may  be  of  different  religious  senti- 
ments  from  our  own,  without  being  a  bad  member  of  society. 


44  American  Jewish  Historical  Society. 

He  condemned  the  folly  of  the  Test  Acts  in  England,  point- 
ing out  that  only  the  really  conscientious  were  prevented  from 
holding  office  there,  while  the  unscrupulous  politicians  reg- 
ularly conformed.21 

"  But  it  is  objected,"  he  continued,  "  that  the  people  of 
America  may  perhaps  chuse  Representatives  who  have  no 
religion  at  all,  and  that  Pagans  and  Mahometans  may  be  ad- 
mitted into  offices.  But  how  is  it  possible  to  exclude  any  set 
of  men  without  taking  away  the  principle  of  religious  free- 
dom, which  we  ourselves  so  warmly  contend  for  ?  This  is  the 
foundation  on  which  persecution  has  been  raised  in  every 
part  of  the  world.  The  people  in  power  were  always  in  the 
right  and  everybody  else  wrong.  If  you  admit  the  least  dif- 
ference, the  door  to  persecution  is  opened.' 


»   22 


The  principles  of  toleration,  to  the  honour  of  this  age,  are  doing 
away  with  those  errors  and  prejudices  which  have  so  long  pre- 
vailed, even  in  the  most  intolerant  countries.  ...  I  consider  the 
clause  under  consideration  as  one  of  the  strongest  proofs  that 
could  be  adduced,  that  it  was  the  intention  of  those  who  formed 
this  system,  to  establish  a  generous  religious  liberty  in  America." 

21  IMd.,  p.  219,  etc.  "  The  intention  was,  to  exclude  all  per- 
sons from  offices  but  the  members  of  the  Church  of  England. 
Yet  it  is  notorious  that  Dissenters  qualify  themselves  for  offices  in 
this  manner,  though  they  never  conform  to  the  Church  on  any 
other  occasion,  and  men  of  no  religion  at  all,  have  no  scruple  to 

make   use   of   this   qualification Happily   no   sect   here   is 

superior  to  another.  As  long  as  this  is  the  case,  we  shall  be  free 
from  those  persecutions  and  distractions  with  which  other  coun- 
tries have  been  torn."  .... 

22  Ibid.  "  It  would  be  happy  for  mankind,"  he  proceeded,  "  if 
religion  was  permitted  to  take  its  own  course  and  maintain  itself 
by  the  excellence  of  its  own  doctrines.  .  .  .  This  article  is  calcu- 
lated to  secure  universal  religious  liberty  by  putting  all  sects  on 
a  level,  the  only  way  to  prevent  persecution." 

In  this  address  the  speaker  also  discussed  the  liberality  to  be 
employed  in  administering  oaths  not  only  to  Christians  and  Jews 
but  also  to  others. 


Religion*  Liberty  in  North   Carolina — Huhner.         45 

The  possibility  of  Jews  holding  political  office  also  came 
under  discussion.  Governor  Johnston,  claiming  that  before 
Jews  or  Mohammedans  could  become  President  or  hold  office, 
either  the  people  at  large  must  be  of  the  same  turn  of  mind, 
or,  to  use  his  own  words,  "  if  any  persons  of  such  a  description 
should,  notwithstanding  their  religion,  acquire  the  confidence 
and  esteem  of  the  people  of  America  by  their  good  conduct 
and  practice  of  virtue,  they  may  be  chosen."  23 

On  the  other  hand,  the  Rev.  David  Caldwell  urged  that 
liberality  "  was  an  invitation  for  Jews  and  Pagans  of  every 
kind  to  come  among  us."  "  I  think,"  said  he,  "  that  in  a 
political  view,  those  gentlemen  who  formed  this  Constitution 
should  not  have  given  this  invitation  to  Jews  and  Heathens."  M 

After  considerable  discussion,  the  narrower  view  prevailed,25 
The  Convention  resolved  neither  to  ratify  nor  to  reject  the 
Constitution,  but  that  a  Declaration  of  Rights  be  laid  before 
Congress  and  twenty-six  amendments  proposed.  North  Caro- 
lina was  therefore  unrepresented  in  the  extra  session  of  the 
first  Congress  which  adopted  the  first  amendment,  "  That  Con- 
gress shall  make  no  law  respecting  the  establishment  of  re- 
ligion or  prohibiting  the  free  exercise  thereof." 

This  amendment  was  partly  a  concession  to  that  State, 

24  Proceedings  and  Debates  of  the  Convention  of  North  Caro- 
lina, etc.,  Edenton,  MDCCLXXXIX,  p.  225,  etc.  In  view  of  the 
large  Jewish  immigration  in  recent  years,  the  following  argu- 
ment of  Johnston  seems  curious.  Replying  to  Caldwell,  he  ad- 
mitted the  possibility  of  Jews,  Pagans,  etc.,  emigrating  to  the 
United  States,  "  yet,"  said  he,  "  they  could  not  be  in  proportion  to 
the  emigrations  of  Christians  who  should  come  from  other  coun- 
tries, that  in  all  probability,  the  children  even  of  such  people 
would  be  Christians." 

24  Ibid.,  p.  226,  etc.  Mr.  Lancaster,  an  ardent  supporter  of  Cald- 
well, also  spoke  at  length  on  the  possibility  of  Papists  and  Ma- 
homedans  becoming  President,  should  the  instrument  be  ratified. 

25  Ibid,  p.  226.  Among  other  splendid  addresses  in  favor  of 
religious  liberty  during  the  session,  one  by  Mr.  Spencer  deserves 
particular  mention. 


46  American  Jewish  Historical  Society. 

which  thereupon  adopted  the   Constitution  at  Fayetteville, 
November  21,  1789.29 

Despite  all  this  prejudice,  Article  XXXII  of  the  State  Con- 
stitution soon  came  to  be  regarded  a  dead  letter.  In  the  face 
of  it,  both  Catholics  and  Jews  were  elected  members  of  the 
Legislature,  and  it  has  been  well  said,  that  though  its  provi- 
sions were  aimed  primarily  against  Catholics,  "  it  was  never 
interpreted  against  them."  27  As  a  matter  of  fact  a  Catholic 
was  even  elected  Governor  in  1781/8 

The  article  did  not  receive  elaborate  discussion,  however, 
until  1809,  when  curiously  enough,  the  whole  subject  came 
prominently  to  the  front  in  the  case  of  Jacob  Henry,  a  Jew.29 

Mr.  Henry  had  been  elected  a  member  of  the  Legislature  " 
for  Carteret  County  and  had  served  throughout  the  year  1808. 
He  had  apparently  been  re-elected  in  1809,  and  then  a  fellow 
member,  actuated  by  some  spiteful  motive,  asked  to  have  his 
seat  declared  vacant  on  account  of  his  faith. 

It  may  not  be  amiss  here  to  give  some  account  of  what 
little  we  know  concerning  Jacob  Henry.     He  was  possibly 

26  See  Stephen  B.  Weeks'  "  Church  and  State  in  North  Carolina," 
Johns  Hopkins  University  Studies,  11th  Series,  V-VI,  p.  61. 

27  Judge  Toomer  subsequently  claimed  that  the  clause  was 
merely  "  a.  declaration  of  principles,  not  a  proscription  of  indi- 
viduals." Supporters  of  the  test  even  asserted,  that  it  was  not 
intended  to  keep  individuals  from  holding  office,  but  that  it  was 
to  be  regarded  as  "  hidden  thunder  "  to  be  used  when  needed.  See 
Proceedings  and  Debates  of  the  Convention  of  1835,  Raleigh, 
1836,  pp.  244,  310. 

28  Thomas  Burke.  See  Proceedings  and  Debates  of  the  Conven- 
tion of  1835,  Raleigh,  1836,  p.  319. 

28  Historical  Sketches  of  North  Carolina  from  1584  to  1851, 
compiled  from  Original  Records,  Official  Documents,  and  Tradi- 
tional Statements,  etc.,  by  John  H.  Wheeler,  late  Treasurer  of  the 
State,  Philadelphia,  1851.  Vol.  II,  p.  74.  "  This  was  the  first 
time  in  the  history  of  the  State  that  this  question  had  been  made." 

30  House  of  Commons.     Ibid.,  p.  76. 


Religious  Liberty  in  North  Carolina — Huhner.        47 

the  brother  of  Michael  Gratz,  of  Philadelphia.'1  Jacob  Gratz 
had  assumed  the  name  of  Henry,  and  a  paper  concerning  him 
was  presented  by  Judge  Sulzberger  before  this  Society  some 
years  ago."  During  the  Eevolution  he  seems  to  have  gone 
South,  and  William  Croghan,  writing  to  Michael  Gratz,  from 
Charleston,  in  April,  1780,  intimates  making  search  for  him. 
Croghan's  letter  expressly  states:  "I  am  uncertain  where 
your  brother  is,  otherwise  should  write."  3S 

It  is  not  at  all  unlikely,  therefore,  that  he  subsequently 
settled  in  North  Carolina,  and  if  this  surmise  be  correct,  he 
was  about  sixty  or  sixty-five  years  of  age  at  the  time  when  the 
question  of  his  right  to  hold  office  was  raised. 

Wheeler,  the  historian,  asserts  that  Henry's  seat  was  actually 
vacated.34  Investigation  proves,  however,  that  the  contrary  was 
the  fact.35    Mr.  Henry  boldly  and  successfully  defended  his 

81  A  famous  merchant  in  Revolutionary  days ;  the  father  of  Re- 
becca Gratz,  who  was  the  friend  of  Washington  Irving. 

32 "  Note  on  Jacob  Henry  and  the  Gratz  Family,"  by  Hon.  Mayer 
Sulzberger,  presented  at  meeting  of  Amer.  J.  Hist.  Society,  Dec, 
1897. 

M  Robert  Wilson  Gibbes,  "  Documentary  History  of  the  Ameri- 
can Revolution  (Vol.  1776-82),  1857,  pp.  129,  133,  134. 

A  Jacob  Henry  appears  also  among  the  names  of  patriot  militia 
prisoners  held  by  the  British  on  the  prison  ship  Torbay,  1781. 
In  the  same  list  appears  the  name  of  Jacob  Cohen  and  other  de- 
cidedly Jewish  names.  See  MS.  copy  of  letter  to  General  Greene 
in  possession  of  Lenox  Library;  Emmet  Collection  No.  15,670; 
American  War,  1776-82,  Vol.  2;  Leslie  Papers.  Also  Gibbes,  "  Doc- 
umentary History  of  the  American  Revolution,  1781-2,  pp.  74-5. 
See  also  "  The  Jews  of  South  Carolina,"  by  the  present  writer,  in 
Publ.  Amer.  J.  Hist.  Soc,  Vol.  12,  pp.  55-6. 

M  Historical  Sketches  of  North  Carolina  from  1584  to  1851, 
compiled  from  original  Records,  Documents,  etc.,  by  John  H. 
Wheeler,  late  Treasurer  of  the  State,  Philadelphia,  1851,  Vol.  II, 
p.  74. 

85  Address  of  the  Hon.  William  Gaston  reported  in  "  Proceed- 
ings and  Debates  of  the  Convention  of  North  Carolina,   1835  " 


48  American  Jewish  Historical  Society. 

rights,  though  a  most  curious  construction  of  Article  XXXII 
was  adopted  in  order  to  enable  him  to  retain  his  seat. 

Henry  seems  to  have  been  popular  with  his  constituents 
and  also  to  have  had  many  strong  friends  among  the  leaders 
in  the  House.  Besides  this,  it  so  happened  also,  that  two  of 
the  most  prominent  men  of  the  State  at  the  time  were  mem- 
bers of  the  Eoman  Catholic  Church.  One  was  Judge  Taylor, 
the  other  the  Hon.  William  Gaston.  The  former  had  been  a 
judge  for  many  years,38  while  the  latter,  curiously  enough,  had 
been  elected  to  the  House  of  Commons  in  1808,  though  he, 
too,  had  previously  held  office.37 

(Raleigh,  1836),  p.  281.  See  also  speech  of  H.  M.  Brackenridge 
(Philadelphia,  1828)    p.  91. 

See  also  speech  of  Col.  J.  W.  D.  Worthington,  published  with 
"  Speeches  on  the  Jew  Bill,"  etc.,  by  H.  M.  Brackenridge,  Phila- 
delphia, 1829,  p.  107. 

In  his  address  Col.  Worthington  says:  "A  person  was  some 
year  or  so  past  elected  in  the  North  Carolina  legislature.  She  has  a 
strict  test,  his  seat  was  attempted  to  be  vacated,  it  was  deter- 
mined that  the  State  test  was  repugnant  to  the  Constitution  of  the 
United  States,  and  Tie  retained  his  seat.     He  was  a  Jew." 

36  John  Louis  Taylor  represented  Fayetteville  in  the  House  of 
Commons  in  1792,  was  elevated  to  the  Bench  in  1798,  and  later 
(about  1808)  became  Chief  Justice  of  the  Supreme  Court  of  North 
Carolina,  remaining  Chief  Justice  until  his  death  in  1829.  He 
had  married  the  sister  of  William  Gaston.  See  John  H.  Wheeler, 
"  Historical  Sketches  of  North  Carolina,"  Philadelphia,  1851,  Vol. 
II,  pp.  114,  129.     Also  Appleton's  Cyc.  of  Amer.  Biog.,  Vol.  VI. 

"William  Gaston  (1778-1844)  graduated  from  Princeton  with 
honors,  elected  to  the  State  Senate  in  1799,  and  in  1808  to  the 
House  of  Delegates,  over  which  he  was  chosen  to  preside.  He 
represented  the  State  in  Congress,  1813-15,  and  was  Judge  of  the 
Supreme  Court  from  1834  until  his  death.  One  of  the  counties 
of  North  Carolina  is  named  in  his  honor.  An  interesting  sketch 
of  him  is  given  in  Wheeler,  "  Historical  Sketches  of  N.  C,"  Phila- 
delphia, 1851,  Vol.  II,  p.  114.  See  also  William  H.  Battle,  "  Life 
and  Character  of  William  Gaston,"  Chapel  Hill,  1844.  Also 
Robert  Strange,  "  Eulogy  of  William  Gaston,"  Fayetteville,  1844. 
Also  Appleton's  Cyc.  of  Amer.  Biog.,  Vol.  II. 


Religious  Liberty  in,  North  Carolina — Huhner.        49 

It  will  be  noticed  at  once,  that  the  very  point  raised  against 
Henry  might  have  been  raised  with  equal  propriety  against 
Gaston,  in  fact  against  any  Eoman  Catholic  or  Quaker.  It 
was  but  natural,  therefore,  that  the  prominent  Eoman  Cath- 
olics at  once  rallied  to  Henry's  defense  and  warmly  espoused 
his  cause.  On  the  other  hand  it  is  but  fair  to  state  that  both 
Taylor  and  Gaston  were  broadminded  men,  and,  entirely  inde- 
pendent of  selfish  motives,  both  would  have  fought  the  cause 
of  the  Jewish  member,  on  the  broader  issue  of  complete  re- 
ligious liberty. 

While  investigating  this  interesting  episode,  I  found  a  copy 
of  an  address  made  by  Jacob  Henry  in  Ins  defense  before  the 
House.38  This  speech  is  a  splendid  example  of  composition 
and  for  intrinsic  merit  was  subsequently  republished  in  a 
work  known  as  the  "  American  Orator."  The  address  itself 
is  too  long  to  be  given  in  full,  but  I  will  take  the  liberty  of 
quoting  some  of  its  more  striking  passages. 

After  discussing  the  legal  aspect  of  the  subject  he  continues : 

"  It  is  difficult  to  conceive  how  such  a  provision  crept  into 
the  Constitution,  unless  it  is  from  the  difficulty  the  human 
mind  feels  in  suddenly  emancipating  itself  from  fetters  by 
which  it  has  long  been  enchained:  .... 

"  If  a  man  should  hold  religious  principles  incompatible 
with  the  freedom  and  safety  of  the  State,  I  do  not  hesitate  to 
pronounce  that  he  should  be  excluded  from  the  public  councils 
of  the  same;  and  I  trust  if  I  know  myself,  no  one  would  be 
more  ready  to  aid  and  assist  than  myself.  But  I  should 
really  be  at  a  loss  to  specify  any  known  religious  principles 
which  are  thus  dangerous.  It  is  surely  a  question  between 
a  man  and  his  maker,  and  requires  more  than  human  attri- 
butes to  pronounce  which  of  the  numerous  sects  prevailing  in 

38  Historical  Sketches  of  North  Carolina  from  1584  to  1851, 
compiled  from  original  Records,  Documents,  etc.,  by  John  H. 
Wheeler,  late  Treasurer  of  the  State,  Philadelphia,  1851,  Vol.  II, 
pp.  74-76. 


50  American  Jewish  Historical  Society. 

the  world  is  most  acceptible  to  the  Deity.  If  a  man  fulfils  the 
duties  of  that  religion,  which  his  education  or  his  conscience 
has  pointed  to  him  as  the  true  one,  no  person,  I  hold,  in 
this,  our  land  of  liberty,  has  a  right  to  arraign  him  at  the  bar 
of  any  inquisition ;  and  the  day,  I  trust,  has  long  passed,  when 
principles  merely  speculative  were  propagated  by  force;  when 
the  sincere  and  pious  were  made  victims,  and  the  light-minded 
bribed  into  hypocrites.    Governments  only  concern  the  actions 

and  conduct  of  man,  and  not  his  speculative  notions 

Shall  this  free  country  set  an  example  of  persecution,  which 
even  the  returning  reason  of  enslaved  Europe  would  not  sub- 
mit to?  Will  }rou  bind  the  conscience  in  chains?  Will  you 
drive  from  your  shores  and  from  the  shelter  of  your  Con- 
stitution, all  who  do  not  lay  their  oblations  on  the  same 
altar,  observe  the  same  ritual,  and  subscribe  to  the  same  dog- 
mas? If  so,  which  among  the  various  sects  into  which  we 
are  divided,  shall  be  the  favored  one  ?   .    .    .    . 

"  When  Charles  V,  Emperor  of  Germany,  tired  of  the  cares 
of  government,  resigned  his  crown  to  his  son,  he  retired  to  a 
monastery,  where  he  amused  the  evening  of  his  life  in  regulat- 
ing the  movements  of  watches,  endeavoring  to  make  a  number 
to  keep  the  same  time;  but,  not  being  able  to  make  any  two 
to  go  exactly  alike,  it  led  him  to  reflect  upon  the  folly  and 
crimes  he  had  committed,  in  attempting  the  impossibility  of 
making  men  think  alike? 

"  Nothing  is  more  easily  demonstrated  than  that  the  conduct 
alone  is  the  subject  of  human  laws,  and  that  man  ought  to 
suffer  civil  disqualifications  for  what  he  does,  and  not  for  what 
he  thinks.  The  religion  I  profess  inculcates  every  duty  which 
man  owes  to  his  fellow  men;  it  enjoins  upon  its  votaries  the 
practice  of  every  virtue,  and  the  detestation  of  every  vice,  it 
teaches  them  to  hope  for  the  favor  of  heaven  exactly  in  propor- 
tion as  their  lives  have  been  directed  by  just,  honorable,  and 
beneficent  maxims.  This,  then,  gentlemen,  is  my  creed ;  it  was 
impressed  upon  my  infant  mind;  it  has  been  the  director  of 


Religious  Liberty  in  North  Carolina — Huhner.        51 

my  youth,  the  monitor  of  my  manhood,  and  will,  I  trust,  be 
the  consolation  of  my  old  age.  At  any  rate,  Mr.  Speaker,  I  am 
sure  that  you  cannot  see  anything  in  this  religion  to  deprive 
me  of  my  seat  in  this  House.  So  far  as  relates  to  my  life 
and  conduct,  the  examination  of  these  I  submit  with  cheer- 
fulness to  your  candid  and  liberal  construction.  What  may 
be  the  religion  of  him  who  made  this  objection  against  me, 
or  whether  he  has  any  religion  or  not,  I  am  unable  to  say.  I 
have  never  considered  it  my  duty  to  pry  into  the  belief  of 
other  members  of  this  House.  If  their  actions  are  upright 
and  conduct  just,  the  rest  is  for  their  own  consideration,  not 
for  mine.  I  do  not  seek  to  make  converts  to  my  faith,  what- 
ever it  may  be  esteemed  in  the  eyes  of  my  officious  friend, 
nor  do  I  exclude  anyone  from  my  esteem  or  friendship  because 
he  and  I  differ  in  that  respect.  The  same  charity,  therefore,  it 
is  not  unreasonable  to  expect,  will  be  extended  to  myself,  be- 
cause in  all  things  that  relate  to  the  State  and  to  the  duties 
of  civil  life,  I  am  bound  by  the  same  obligations  with  my 
fellow  citizens,  nor  does  any  man  subscribe  more  sincerely  than 
myself  to  the  maxim,  '  Whatever  ye  would  that  men  should 
do  unto  you,  do  ye  so  even  unto  them,  for  such  is  the  law  and 
the  prophets.' " 

Henry's  speech  produced  a  profound  impression  even  out- 
side of  Forth  Carolina,  and  the  victory  achieved  was  a  power- 
ful argument  some  years  later  when  the  struggle  for  religious 
liberty  was  going  on  in  Maryland.  In  speaking  on  the  Mary- 
land Jew  Bill,  in  1818,  the  Hon.  H.  M.  Brackenridge  alluded 
to  the  incident  as  follows :  "  In  the  State  of  North  Carolina 
there  is  a  memorable  instance  on  record  of  an  attempt  to 
expel  Mr.  Henry,  a  Jew,  from  the  legislative  body,  of  which 
he  had  been  elected  a  member.  The  speech  delivered  on  that 
occasion  I  hold  in  my  hand.  It  is  published  in  a  collection 
called  the  '  American  Orator/  a  book  given  to  your  children  at 
school  and  containing  those  republican  truths  you  wish  to  see 
earliest  implanted  in  their  minds.    Mr.  Henry  prevailed,  and 


52  American  Jewish  Historical  Society. 

it  is  a  part  of  our  education  as  Americans  to  love  and  cherish 
the  sentiments  uttered  by  him  on  that  occasion."  39 

Later  on,  during  the  Maryland  struggle  in  1824,  Col. 
J.  W.  D.  Worthington,  in  the  course  of  his  speech,  also  recalled 
Henry's  triumph  in  glowing  terms.40 

Despite  all  this,  however,  the  victory  was  one  in  form  only, 
not  in  substance.  As  a  matter  of  fact,  the  test  was  more 
firmly  implanted  than  ever.  The  House  of  Commons  in  per- 
mitting Henry  to  retain  his  seat,  resorted  to  a  far-fetched  con- 
struction of  the  32d  Article,  which  emphasized  rather  than 
weakened  its  prohibition.  The  decision  was  based  on  the 
fact  that  the  Constitution  prohibited  non-Protestants  from 
holding  office  in  any  civil  department  of  the  State.  This  was 
interpreted  not  to  exclude  such  persons  from  serving  in  the 
legislature.  The  legislative  office,  it  was  said,  was  above  all 
civil  offices.41  The  view  was  more  pointedly  defined  by  saying, 
that  Catholics  and  Jews  could  make  the  laws  but  could  neither 
execute  nor  interpret  them.42 

As  years  went  by,  several  efforts  were  made  to  abolish  the 
test  altogether.  In  1823  a  Convention  was  held  at  Ealeigh, 
called  the  "Western  Convention."  A  motion  was  made  "to 
expunge  the  32nd  Article  as  hostile  to  the  principles  of 
religious  freedom  and  unworthy  of  the  liberty  of  the  age." 
A  general  concurrence  in  this  sentiment  was  expressed,  but 
the  motion  was  withdrawn  at  the  suggestion  of  Mr.  Yancy, 

39  Speeches  on  the  Jew  Bill,  etc.,  by  H.  M.  Brackenridge,  Phila- 
delphia, 1829,  p.  91. 

40  Speech  of  Col.  J.  W.  D.  Worthington,  published  with 
"  Speeches  on  the  Jew  Bill,"  etc.,  by  H.  M.  Brackenridge,  Phila- 
delphia, 1829,  p.  107. 

41  This,  according  to  Gaston,  was  the  ground  on  which  Henry 
retained  his  seat.  See  Speech  of  Hon.  William  Gaston,  Balti- 
more, 1835,  p.  23.  Also  Proceedings  and  Debates  of  the  Conven- 
tion of  North  Carolina  (1835),  Raleigh,  1836,  p.  281. 

"IMd.,  p.  282. 


Religious  Liberty  in  North  Carolina — Hiihner.        53 

the  president,  on  the  ground  that  it  was  foreign  to  the  objects 
of  the  Convention.*3 

Catholics  were  repeatedly  elected  to  office,  and  several  in- 
genious constructions  were  put  upon  the  Constitutional  pro- 
hibition, so  as  to  enable  them  to  serve.  'The  fact  that  they  did 
not  deny  the  divine  inspiration  of  both  the  Old  and  the  New 
Testament,  gave  them,  of  course,  a  decided  advantage  over 
Jews  and  others.  Catholics,  furthermore,  took  the  position 
that  as  the  Constitution  did  not  define  what  was  meant  by 
the  Protestant  religion,  their  belief  could  not  be  said  to  be  a 
denial  of  it.  "  The  Catholic  believes  in  the  Divinity  of  the 
Protestant  faith  and  he  also  believes  in  something  else  be- 
sides," argued  Judge  Gaston,  when  the  question  was  raised." 
Afterward,  however,  Gaston  was  elected  Justice  of  the  Su- 
preme Court;  a  doubt  at  once  arose,  even  in  his  own  mind, 
whether  he  could  accept  the  office.  The  candidate  then  re- 
sorted to  another  and  even  more  ingenious  interpretation  of 
the  Constitution,  which  was  subsequently  followed  in  other 
cases  as  well.  Section  32  prohibits  only  such  persons  from 
holding  office  as  shall  deny  the  truth  of  the  Protestant  religion 
or  the  divinity  of  both  the  Old  and  the  New  Testament. 
This,  Gaston  argued,  did  not  prevent  either  Jews  or  Catholics 
from  holding  office,  for  the  word  "  deny  "  implies  an  overt  act. 
If  a  person  tells  me  something,  I  may  doubt  it,  but  I  need 
not  deny.  I  may  actually  disbelieve  the  thing,  and  yet  for 
reasons  of  courtesy  refrain  from  denying  it.  While,  therefore, 
a  Catholic  may  actually  disbelieve  in  Protestantism,  for  reason 
of  courtesy,  he  should  refrain  from  denying  its  truth.  All 
that  was  contemplated  by  the  Constitution,  Gaston  argued,  was 
that  no  person  shall  do  that  overt  act  of  denying  the  truth  of 

43  See  Gaston's  Address  in  the  Convention  of  1835.    Ibid.,  p.  275. 

44  This  argument  Gaston  used  in  his  own  defense,  pointing  out 
that  Catholics  could  therefore  conscientiously  conform  to  the 
test.  See  Gaston's  Address  in  the  Convention  of  1835,  Proceed- 
ings, etc.,  p.  268. 


54  American  Jewish  Historical  Society. 

the  Protestant  faith,  that  would  discredit  it  with  the  com- 
munity. To  use  his  own  words,  "  The  Constitution  does  not 
prescribe  the  faith  which  entitles  to  or  excludes  from  civil 
office,  but  demands  from  all  those  who  hold  office,  that  decent 
respect  of  the  prevalent  religion  of  the  country  which  forbids 
them  to  impugn  it,  to  declare  it  false,  to  arraign  it  as  an  im- 
position upon  the  credulity  of  the  people."  45 

As  already  stated,  this  ingenious  construction  was  generally 
adopted.  Despite  its  apparent  acceptance,  however,  Eoman 
Catholics  were  doubtless  far  from  convinced  by  its  logic,  and 
entered  upon  a  systematic  campaign  for  the  abolition  of 
the  test. 

In  1833,  the  General  Assembly  undertook  to  prepare  a 
substitute  for  the  existing  Constitution.  In  the  report  ac- 
companying the  bill,  the  committee  recommended  that  the 
32d  Article  of  the  Constitution  should  be  abolished  at  least 
in  part,  if  not  altogether.  "  Its  spirit  is  in  conflict  with 
religious  freedom;  it  has  no  practical  use  and  it  may  be  con- 
sidered a  mere  badge  of  ancient  prejudice,  which,  however 
excusable  in  those  who  first  engrafted  it  upon  our  Constitu- 
tion, is  unworthy  the  present  age  of  enlightened  liberality."  " 

The  substitute  wholly  expunged  the  test.     A  motion  made 

45  Speech  of  Hon.  William  Gaston,  Baltimore,  1835,  p.  8.  See 
also  Gaston's  Argument  before  the  Convention  of  1835,  in  which 
the  whole  subject  is  elaborately  reviewed.  Proceedings  and  De- 
bates, etc.,  1835,  p.  267.  Gaston  made  his  argument  in  favor  of 
this  construction,  even  more  forcible  by  pointing  out  that,  as  the 
Bill  of  Rights  gives  religious  liberty,  therefore  any  provision 
limiting  religious  freedom,  must  be  strictly  construed.  Ibid.,  pp. 
266-7. 

If  Gaston's  argument  be  accepted  as  correct  construction,  it 
will  be  noticed  at  once  that  Jews  were  on  an  equal  footing  with 
Roman  Catholics,  and  that  both  could  hold  office  notwithstand- 
ing Section  32. 

48  Proceedings  and  Debates  of  the  Convention  of  North  Caro- 
lina (1835),  Raleigh,  1836,  p.  277. 


Religious  Liberty  in  North  Carolina — Hiihner.         55 

in  the  Senate,  to  insert  it,  was  rejected  by  a  vote  of  23  to  38. 
A  modification  was  then  proposed  omitting  all  those  parts 
"which  related  to  a  denial  of  the  divine  authority  of  the 
New  or  Old  Testament  and  of  the  truth  of  the  Protestant  re- 
ligion," and  this  was  adopted  by  a  vote  of  50  to  9.47 

It  was  then  submitted  to  the  people  to  call  a  Convention 
to  amend  the  Constitution.  The  result  was  the  Convention 
of  1835.48 

As  already  stated,  the  Catholics  seem  to  have  canvassed 
several  of  the  counties  on  this  one  issue.  The  Convention 
met  at  Ealeigh,  and  then  despite  the  repeated  statement  made 
for  years,  that  the  objectionable  clause  was  a  dead  letter,  it 
at  once  became  the  very  storm  center  of  discussion.  Seven 
days  of  the  session  were  spent  in  debates  concerning  it,  while 
about  one-third  of  the  entire  Convention  Journal  is  devoted 
to  this  subject  alone."  Although  there  were  but  few  Jews  in 
the  State  it  is  most  remarkable  that  their  claims  were  dis- 
cussed no  less  earnestly  than  those  of  Eoman  Catholics. 

Two  of  the  most  prominent  members  of  the  Convention 
who  had  been  absent  on  other  occasions  are  recorded  as  hav- 
ing left  their  sick  beds,  expressly  to  vote  on  this  one  question. 
To  the  honor  of  both  these  men,  be  it  said  they  were  uncom- 
promisingly in  favor  of  the  broadest  religious  liberty.  The 
one  was  Mr.  Carson,50  the  other  was  John  Branch,  of  Halifax, 
once  Governor  of  the  State,  United  States  Senator,  and  but 

"Ibid.,  p.  278. 

48  The  Convention  met  at  Raleigh,  June  4,  1835,  for  the  purpose 
of  amending  the  Constitution  of  1776.     Also  ibid.,  pp.  278-9. 

*9  Ibid.  The  discussion  of  the  objectionable  clause  began  June 
26,  1835,  and  lasted,  with  slight  interruption,  until  July  9,  1835. 
Nathaniel  Macon  was  President  of  the  Convention. 

80  Mr.  Carson  had  represented  North  Carolina  in  Congress,  1825- 
33,  and  in  the  Convention  he  represented  Burke  County.  See 
Proceedings  and  Debates  of  the  Convention,  1835,  p.  240. 


56  American  Jewish  Historical  Society. 

a  few  years  before  Secretary  of  the  Navy  in  Jackson's 
Cabinet.61 

The  debate  was  opened  with  a  brilliant  address  by 
Weldon  N.  Edwards  M  in  favor  of  the  broadest  possible  view. 
"  If  we  exclude  one  sect  to-day/'  said  he,  "  what  sect  will  the 
reckless  spirit  of  proscription  next  assail.  ...  A  system 
based  on  the  principle  that  the  consciences  of  men  and  their 
faith  in  matters  of  religion  shall  become  an  affair  of  govern- 
ment, cannot  long  be  tolerated  without  a  total  enslavement 
of  the  citizen " BS 

The  Jews  were  practically  the  only  sect  not  represented  in 
the     Convention.       Eoman     Catholics/4     Moravians,315     and 

"John  Branch  (1782-1863).  Later  Mr.  Branch  was  also  Gov- 
ernor of  the  Territory  of  Florida.  See  Appleton's  Cyc.  of  Amer. 
Biog.,  Vol.  I.     Also  Proceedings  and  Debates,  etc.,  1835,  p.  213. 

52  See  Appleton's  Cyc.  of  Amer.  Biog.,  II.  Edwards  represented 
North  Carolina  in  Congress,  1816-27,  later  became  President  of 
the  State  Senate,  and  in  1861  was  President  of  the  Convention 
that  passed  the  ordinance  of  secession. 

53  Proceedings  and  Debates  of  the  Convention,  etc.  (1835),  Ra- 
leigh, 1836,  p.  216.  "  By  retaining  this  article,"  he  continued, 
"  we  proclaim  that  a  particular  faith  shall  be  the  price  of  office, — 
that  all  who  do  not  conform  to  it  shall  be  punished  by  an  exclu- 
sion from  the  honors,  emoluments,  and  distinctions  which  the 
humblest  should  be  permitted  to  aspire  to.  .  .  .  The  only  true 
way  to  keep  religion  and  politics  apart,  is  to  confer  no  peculiar 
privileges  on  any  one  sect,  but  to  extend  equal  protection  to  all." 
Ibid.,  pp.  216-217. 

"Gaston  was  the  leading  Roman  Catholic  in  the  Convention. 
His  addresses  and  debates  were  dignified,  broad,  and  manly. 
Another  prominent  speaker  in  favor  of  Roman  Catholics  was 
James  W.  Bryan,  an  Episcopalian.  He  also  spoke  in  favor  of  the 
abolition  of  the  entire  article,  and  paid  a  glowing  tribute  to  the 
memory  of  Jefferson  for  framing  the  Act  for  Religious  Freedom 
in  Virginia.    Ibid.,  pp.  219-236. 

65  Mr.  Shober  represented  the  Moravians.    Ibid.,  pp.  249-51. 


Religious  Liberty  in  North  Carolina — Hiihner.        57 

Quakers,  all  had  their  spokesmen.58  Several  addresses  were 
made  full  of  the  most  bitter  invective  against  Catholics. 

The  leaders  of  the  Anti-Liberal  party  were  Jesse  Cooper" 
and  James  S.  Smith,  the  latter  of  whom  affected  liberality 
by  saying  that  no  Catholic  had  ever  been  disturbed  by  the 
Constitutional  prohibition.  "  It  should  be  retained,"  he 
argued,  "  as  the  time  might  come  when  it  would  be  needed. 
It  should  be  kept  as  Sleeping  Thunder."  58 

Nathaniel  Macon,  the  friend  of  Jefferson  and  Madison, 
then  78  years  of  age,  was  also  present  on  that  occasion  and 
made  a  powerful  plea  for  abolishing  the  entire  article.50 

66  James  Wellborn,  of  Wilkes,  spoke  in  favor  of  an  amendment 
which  would  "  exclude  only  atheists  and  infidels  from  having  any- 
thing to  do  with  the  government."    Ibid.,  p.  242. 

57  Cooper's  address  is  a  bitter  attack  on  Roman  Catholics.  Ibid., 
p.  242. 

5S  Ibid.,  pp.  244,  310.  A  similar  sentiment  was  expressed  by 
Mr.  Joiner.  Smith  appears  to  have  held  the  narrowest  views  of 
all.  Besides  his  firm  opposition  to  Roman  Catholics,  his  objec- 
tion extended  to  the  other  sects  as  well.  In  his  argument  at  the 
session  on  June  30,  1835,  he  stated  that  he  was  "  not  willing  by 
expunging  this  article  to  let  in  Turks,  Hindoos,  and  Jews.  They 
might  call  him  a  bigot  as  much  as  they  pleased,  but  he  would 
not  consent  to  this."  .  .  .  .  "  Must  we  swear  the  Turk  on  the 
Koran,  must  we  separate  the  Holy  Scriptures  that  we  may  swear 
the  Jew  on  the  Old  Testament."     (Ibid.,  p.  308.) 

59  Proceedings  and  Debates  of  the  Convention,  etc.  (1835), 
Raleigh,  1836,  pp.  246-8.  Nathaniel  Macon  (1757-1837)  may  well 
be  called  the  "  Grand  Old  Man "  of  North  Carolina.  Leaving 
Princeton  at  the  outbreak  of  the  American  Revolution,  he  served 
as  a  soldier  until  1782,  when  Gen.  Greene  urged  him  to  accept  the 
honor  of  State  Senator,  a  position  he  held  until  1785.  He  repre- 
sented North  Carolina  in  Congress  from  1791  to  1815,  when  he 
became  U.  S.  Senator,  holding  that  dignity  until  1828.  He  was 
Speaker  of  the  House  1801-6.  Although  frequently  offered  high 
executive  office,  he  refused  whatever  was  not  the  gift  of  the 
people  or  their  immediate  representatives  in  the  legislature.  He 
was  President,  pro.  tern.,  of  the  Senate,  1825-7.     John  Randolph 


58  American  Jewish  Historical  Society. 

"  If  a  Hindoo  were  to  come  among  us,"  said  he,  "  and  was 
fully  qualified  to  discharge  the  duties  of  any  office  to  which 
he  might  aspire,  his  religious  belief  should  not  constitute  an 
objection  why  he  should  be  debarred.  Who  made  man  a 
judge,  that  he  should  presume  to  interfere  with  the  sacred 
rights  of  conscience  ?  "  " 

Another  powerful  appeal  was  made  by  Kenneth  Eayner"1 
and  lastly  by  Judge  Gaston,  who  referred  to  the  Henry 
incident.62 

"  The  prohibitions  in  this  article  can  exclude  no  one  from  seats 
in  the  General  Assembly.  ...  A  seat  in  the  Legislature  is  above 
offices  or  places  of  trust  in  the  Civil  Department  and  is  not  com- 
prehended impliedly  within  these  terms.  If  there  had  been  any 
good  reason  to  doubt  this  construction,  such  a  doubt  would  have 
been  removed  by  the  adjudication  of  the  Senate  of  the  United 
States  upon  the  impeachment  of  William  Blount,  and  the  decision 
of  our  House  of  Commons  in  the  year  1808  in  the  case  of  Mr. 
Jacob  Henry,  a  Jew,  and  a  representative  in  that  body  from  the 
County  of  Carteret." 

said  of  him,  "  He  is  the  wisest,  the  purest,  and  the  best  man  that 
I  ever  knew."     See  Appleton's  Cyc.  of  Amer.  Biog.,  Vol.  IV 

In  the  debate  for  the  abolition  of  the  test  he  took  the  broadest 
possible  ground,  namely,  "  that  man  is  responsible  to  his  Creator 
alone  for  his  religious  faith,  and  that  no  human  power  has  any 
right  to  prescribe  any  particular  opinions  as  a  test  of  fitness  for 
office." 

mIMd.,  p.  246. 

61  Proceedings  and  Debates  of  the  Convention  (1835),  Raleigh, 
1836,  pp.  254-264.  Kenneth  Rayner  subsequently  represented 
North  Carolina  in  Congress,  1839-45.  "  Retain  that  article,"  said 
he,  "  and  the  Catholic  and  the  Jew  will  be  placed  under  the  ban 
of  proscription,  no  matter  how  great  may  be  his  merit;  although 
he  may  love  his  country  with  a  patriotism  as  pure  as  the  first 
love  of  woman,  although  he  may  pour  out  his  blood  like  water 
in  her  defense,  yet  for  daring  to  worship  God  according  to  the 
dictates  of  his  own  conscience,  you  cut  him  off  from  all  hope  of 
political  preferment  and  from  all  stimulus  to  a  laudable  ambi- 
tion" (p.  263). 

"Ibid.,  p.  281. 


ERRATA 


Pp.  58  and  59.     The  fine  print  in  the  text  is  part  of  note  62, 
but  was  inserted  above  by  printer's  error. 

Pg.  63.     (Last  line)  for  "said"  read  "same." 


Religious  Liberty  in  North  Carolina — Huhner.        59 

Gaston's  address  is  probably  the  most  important  address  de- 
livered in  the  Convention  and  well  deserves  more  ample  notice. 
The  arguments  used  by  him,  have,  however,  been  hereinbefore 
stated.  See  also  ibid.,  pp.  265-304.  While  Gaston  contended  on 
the  one  hand  that  the  section  did  not  disqualify  Roman  Catholics 
and  others,  yet  he  insisted  on  having  it  wholly  expunged. 

"  The  question  is,  ought  there  be  any  religious  test  in  the 
Constitution?  Shall  any  man  be  debarred  from  office  merely  be- 
cause of  his  opinions  on  matters  of  religion?  To  me,  it  seems, 
the  answer  must  be  in  the  negative."     {Ibid.,  p.  283.) 

In  this  address  also  occurs  an  eloquent  tribute  to  Roger  Wil- 
liams, He  also  quotes  from  Swift,  "  We  have  just  religion  enough 
to  hate,  and  not  enough  to  love  each  other."  The  address  was  so 
highly  esteemed  that  it  was  reprinted  in  pamphlet  form.  See 
"  Speech  of  Hon.  William  Gaston,  delivered  in  the  Recent  State 
Convention  of  North  Carolina  assembled  for  the  purpose  of  re- 
vising the  Constitution,"  Baltimore,  1835. 

Similar  liberal  views  were  also  expressed  by  other  speakers, 
Mr.  Harrington  among  others.    Ibid.,  p.  306. 

During  the  debate  a  compromise  measure  had  been  offered 
which  would  enable  Catholics  to  hold  office,  but  would  still 
exclude  the  other  sects.  The  amendment  was  adopted  and 
consisted  in  simply  striking  out  the  word  "  Protestant "  and 
inserting  the  word  "  Christian  "  instead.83 

Even  after  this  concession,  the  noble  champions  of  religions 
liberty  did  not  remain  silent.  Mr.  Edwards  at  once  moved 
to  amend  the  committee's  report  by  inserting  the  following: 
"  That  all  men  have  a  natural  and  unalienable  right  to  wor- 
ship Almighty  God  according  to  the  dictates  of  their  own 
consciences,  all  religious  tests  as  qualifications  for  office  are 
incompatible  with  the  principles  of  free  government."  This 
amendment  was  lost  by  a  vote  of  87  to  36.  The  most  promi- 
nent men  in  the  Convention,  however,  Gaston,  Macon,  Branch, 
and  others,  voting  in  its  favor." 

"June  30,  1835.     Proceedings  and  Debates,  etc.,  p.  309.     This 
was  adopted  by  the  body  sitting  as  a  Committee  of  the  Whole. 
"  Session,  July  1,  1835.    Ibid.,  p.  310. 


60  American  Jewish  Historical  Society. 

Thereafter  another  amendment  was  offered  by  Mr.  Jacocks 
excluding  only  atheists  from  office.65 

Following  this,  Governor  Branch  made  an  impassioned 
plea  on  behalf  of  the  Jews.  He  boldly  stated  that  he  would 
refuse  to  vote  for  the  amendment  as  reported,  as  it  did  not 
remove  the  stain  from  the  Constitution.  To  use  his  own 
words,  "  Striking  out  the  word  '  Protestant '  and  inserting 
the  word  '  Christian '  would  not  cure  the  evil  ....  Why 
are  the  Jews  to  be  excluded  from  office?  They  were  the 
favorite  people  of  the  Almighty.  Our  Saviour  and  His  dis- 
ciples were  Jews,  and  are  there  not  men  among  the  Jews  as 
talented,  as  virtuous,  as  well  qualified  to  fill  any  office  in  our 
Government  as  any  other  citizen  in  our  Community.  A  Jew 
may  be  appointed  to  any  office  under  the  General  Government. 
He  may  be  raised  to  the  Presidency  of  the  United  States, 
and  why  shall  we  refuse  to  admit  him  to  any  office  under  our 
government  ?  " 66  Judge  Daniel  thereupon  offered  a  liberal 
resolution,67  but  this  was  lost,  as  was  also  another  offered  by 
Mr.  Holmes.68 

65  This  amendment  was  as  follows :  "  No  person  who  shall 
deny  the  being  of  a  God  shall  be  capable  of  holding  any  office  or 
place  of  trust  or  profit  in  the  Civil  Department  within  this  State, 
provided  that  the  liberty  of  conscience  hereby  secured  shall  not 
be  construed  to  excuse  acts  of  licentiousness  or  justify  practices 
inconsistent  with  the  peace  or  safety  of  the  State." 

It  was  lost  by  a  vote  of  82  to  42.    Ibid.,  p.  310. 

66  Proceedings  and  Debates  of  the  Convention,  etc.  (1835), 
Raleigh,  1836,  p.  311. 

67 "  Resolved,  that  it  is  expedient  to  remove  the  disqualifications 
for  office  contained  in  the  32d  Article,  from  all  who  do  not  deny 
the  Being  of  a  God  and  an  accountability  to  Him  for  the  deeds 
done  in  the  body."     This  was  lost,  80  to  46.    Ibid.,  pp.  311-12. 

Judge  Daniel  at  this  time  was  Attorney-General,  later  he  rep- 
resented the  State  in  Congress  for  many  years. 

68  Mr.  Holmes'  substitute  was  as  follows :  "  That  no  person 
who  shall  deny  the  Being  of  a  God  shall  be  capable  of  holding 
any  office  or  place   of  trust  or  profit  in  the  Civil   Department 


Religious  Liberty  in  North  Carolina — Huhner.        61 

The  original  amendment  to  substitute  the  -word  "  Chris- 
tian "  for  "  Protestant "  then  came  to  a  vote.  The  compro- 
mise was  championed  by  Mr.  Carson,  who  himself  had  voted 
for  a  total  abolition  of  the  test. 

"  We  were  in  favor/'  said  he,  "  of  a  complete  religious 
toleration.  "We  have  been  defeated  ...  If  we  cannot  make 
room  for  the  Jew,  if  he  be  thought  worthy  for  office,  let  us 
not  refuse  the  privilege  for  Christians  of  every  denomina- 
tion." 60  The  compromise  was  carried,  but  some  of  the  cham- 
pions for  absolute  religious  liberty,  deliberately  voted  against 
it  on  the  ground  that  they  would  have  nothing  less  than  a 
full  and  complete  abolition  of  the  test.  Among  these  was 
Governor  Branch.70 

Even  then  the  struggle  was  not  closed;  on  July  9,  1835, 
the  amendment  came  up  for  a  second  reading.  There  was, 
of  course,  no  chance  to  change  the  vote,  but  nevertheless  a 
brilliant  appeal  was  made  by  Mr.  Wilson.71    "  Why,"  said  he, 

within  this  State.  The  exercise  and  enjoyment  of  every  religious 
profession  and  worship  without  discrimination  shall  forever  be 
free  to  all  persons  in  this  State,  providing  the  right  hereby  de- 
clared and  established  shall  not  be  so  construed  as  to  excuse  or 
justify  practices  incompatible  with  the  freedom  and  safety  of  the 
State  and,  provided  further,  that  no  preference  shall  ever  be 
given  by  law  to  any  religious  sect  or  mode  of  worship."  Lost, 
78  to  46.     Ibid.,  p.  311. 

In  this  connection  it  is  interesting  to  note  that  Mr.  Toomer, 
who  opposed  the  amendment,  declared  that  "  the  Article  is  a 
mere  declaration  of  principles  and  not  a  proscription  of  indi- 
viduals from  the  enjoyment  of  any  privilege.  Infidels  and  Jews 
have  been  members  of  each  branch  of  the  General  Assembly." 
Ibid.,  p.  314. 

"Ibid.,  p.  329. 

70  The  vote  was  74  to  51.    Ibid.,  p.  331. 

71  Mr.  Wilson  spoke  for  the  Quakers.  It  is  interesting  to  note 
that  in  his  address  he  laid  stress  on  the  fact  that  no  hostility 
existed  against  the  Jews.  He  defied  his  opponents  to  say  "  that 
there  was  the  least  hostility  in  the  public  mind  against  Jews  or 


62  American  Jewish  Historical  Society. 

"  should  Catholics  be  admitted  to  a  participation  in  the  offices 
of  trust  and  profit  in  this  State,  while  Jews,  Quakers,  and 
Deists  are  excluded.  Is  there  anyone  here  prepared  to  say 
to  his  constituents  that  the  Catholics  have  been  found  more 
trustworthy  than  the  peaceful  Quakers  or  the  persecuted 
Jews?"73" 

He  also  pointed  out  that  the  Catholics  would  be  no  better 
off  by  substituting  the  word  "  Christian  "  for  "  Protestant," 
calling  attention  to  the  fact  that  the  Presbyterian  Convention 
at  Pittsburg  had  then  but  recently  adopted  a  resolution  "  that 
Catholicism  cannot  be  recognized  as  a  Christian  Church."  73 
Pleading  for  the  Jew,  he  continued,  "Who  is  prepared  to 
say  that  there  is  not  at  this  very  moment  among  us,  some 
son  of  Abraham  who,  fired  by  genius  and  prompted  by  the 
most  laudable  ambition,  may,  in  the  course  of  the  next  thirty 
years,  by  dint  of  his  extraordinary  talents,  cultivated  and 
nurtured  by  the  most  studious  and  unremitted  industry,  oc- 
cupy the  topmost  place  in  the  affections  of  the  State.  Is  it 
unlikely?"74 

Mr.  Wilson  then  offered  the  following  amendment :  "  Ee- 
solved,  That  all  freemen,  having  the  qualifications  of  age  and 
property  prescribed  by  the  existing  Constitution,  and  who, 
previously  to  entering  upon  official  duties,  shall  take  the 
oath  of  allegiance  to  this  State,  and  the  oaths  to  support  the 
Constitution  of  this  State  and  the  Constitution  of  the  United 

Quakers.  The  only  class  against  whom  there  was  any  excite- 
ment in  the  public  mind  was  the  Roman  Catholics,  and  this  was 
known  to  all."    IMd.,  p.  387. 

72  IMd.,  p.  388.  "  There  are  but  few  Catholics  in  this  State, 
still  fewer  Jews,  while  the  Quakers  are  numerous." 

"IMd.,  p.  390. 

General  Louis  Dicken  Wilson  was  one  of  the  most  beloved  pub- 
lic men  in  North  Carolina  and  had  been  a  member  of  the  legis- 
lature for  many  years.     See  Wheeler's  Sketches,  etc.,  Vol.  II,  p.  144. 

"Proceedings  and  Debates  of  the  Convention  of  1835,  Raleigh, 
1836,  p.  394. 


Religious  Liberty  in  North  Carolina — Huhner.        63 

States,  shall  be  capable  of  holding  any  office  of  trust  or  profit 
within  the  Civil  Department  of  this  State."  This  amend- 
ment was  lost  and  the  original  compromise  was  adopted." 
The  result,  therefore,  was,  that  Eoman  Catholics  alone  were 
emancipated  in  1835.™  The  legal  status  of  Jews,  Quakers, 
Deists,  and  others  remained  entirely  unchanged. 

This  result  was  severely  critizised  by  the  press  at  the  time, 
and  particularly  by  the  "  Newbern  Spectator,"  whose  com- 
ment was  as  follows :  "  The  illiberal  and  disgraceful  distinc- 
tion which  this  article  makes  between  Protestants  and  other 
sects  of  worshippers  has  long  been  condemned  by  nearly  every 
intelligent  man  in  the  State,  and  it  was  hoped,  indeed  we  be- 
lieve, it  was  the  intention  of  the  people  that  this  distinction 
should  be  done  away  by  the  Convention;  but  a  majority  of 
the  members  thought  it  better  to  retain  the  spirit  of  the 
odious  restriction  on  liberty  of  conscience,  notwithstanding 
the  brilliant  and  convincing  arguments  used  by  Judge  Gaston 
and  other  distinguished  gentlemen  in  favor  of  a  more  liberal 

})  77 

course. 

Matters  now  remained  in  this  condition  for  many  years 
until  the  agitation  in  favor  of  removing  Jewish  disability 
received  a  powerful  stimulus  from  a  Jew,  outside  of  Caro- 
lina, a  man  whose  services  to  the  cause  of  American  Judaism 
have  never  been  fully  appreciated,  a  zealous  defender  of  his 
faith  and  at  the  said  time  a  thorough  American.     I  refer  to 

70  Ibid,  p.  397. 

76  It  seems  that  this  result  aroused  considerable  anti-Catholic 
feeling  throughout  the  State  and  that  Gaston's  Speech  was  pub- 
lished in  pamphlet  form  partly  to  offset  this  outbreak.  In  fact 
the  preface  to  the  pamphlet  states  "  The  following  speech  derives 
extraordinary  claims  to  attention  from  the  attempts  which  have 
been  frequent  of  late  in  various  quarters,  to  rouse  a  spirit  of 
religious  persecution  against  a  large  and  most  estimable  portion 
of  our  countrymen." 

77  See  Preface  to  Gaston's  Address.     (Baltimore,  1835.) 

6 


64  American  Jewish  Historical  Society. 

Isaac  Leeser,  of  Philadelphia.78  In  his  periodical,  "  The 
Occident,"  he  never  ceased  to  call  attention  to  the  stain  on 
American  liberty  existing  in  North  Carolina.  He  seems  also 
to  have  been  in  correspondence  with  Jews  there,  constantly 
urging  them  to  take  up  the  struggle.  ™ 

Finally,  in  1858,  the  small  Jewish  Congregation  at  Wil- 
mington, North  Carolina,  circulated  a  petition  for  the  re- 
moval of  the  existing  disability.  This  was  presented  to  the 
legislature.80  The  daily  press  sympathized  with  the  move- 
ment. The  "Wilmington  Journal,"  on  September  20,  1858, 
wrote  as  follows :  "  We  do  not  care  for  commencing  any  agita- 
tion or  starting  any  new  issue.  We  merely  state  our  opinion 
that  the  invidious  distinction  in  our  State  Constitution 
against  the  members  of  this  religious  denomination  is  not  in 
accordance  with  the  liberal  spirit  of  the  age  in  which  we  live. 
The  number  of  Israelites  in  North  Carolina  is  very  small,  and 
does  not  to  our  knowledge  and  belief,  contain  a  single  man 
who  is  an  applicant  for  office  of  any  kind,  and  therefore  the 
incapacity  for  holding  it,  is  more  invidious  because  wholly 
gratuitous."  81 

As  a  result  of  the  agitation  a  bill  was  introduced  in  the 
legislature,  House  Bill  No.  83,  which  provided  for  the  "  repeal 
of  so  much  of  the  section  as  prohibited  persons  of  the  Jewish 
or  Israelitish  faith  from  holding  offices  of  profit  or  trust  in 
the  State."  This  bill  was  referred  to  the  Committee  on 
Judiciary  whose  chairman  subsequently  presented  the  follow- 
ing report :  "  The  Committee  are  of  opinion  that  the  prin- 
ciple on  which  the  bill  is  founded,  is  correct.  No  person 
should  be  proscribed  or  placed  under  any  civil  disability  on 

71  Isaac  Leeser  (1806-1868).  For  sketch  of  his  career  see  Jew- 
ish Encyclopedia,  Vol.  VII. 

"See  "The  Occident,"  Vol.  16,  pp.  408,  503,  531;  Vol.  24,  pp. 
281,  382,  etc. 

,0  See  also  ibid.,  Vol.  16,  p.  531. 

tt  See  also  ibid.,  Vol.  16,  pp.  408-9. 


Religious  Liberty  in  North  Carolina — Hiihner.        65 

account  of  religious  faith."  The  report  then  proceeds  to 
laud  religious  liberty  to  the  skies,  calls  the  objectionable 
clause  in  the  Constitution  "  a  relic  of  bigotry  and  intolerance 
unfit  to  be  associated  in  our  fundamental  law  with  the  en- 
lightened principles  of  representative  government,"  but 
finally  concludes,  "  Such  are  the  views  of  the  Committee ; 
nevertheless  the  Committee  have  instructed  me  to  report  the 
bill  to  the  House  with  the  recommendation  that  it  does  not 
pass,  because  in  the  opinion  of  the  committee,  it  is  highly  in- 
expedient to  alter  or  amend  the  Constitution  by  legislative 
enactment  in  any  particular  whatsoever."  8Z 

The  result  aroused  some  sharp  criticism,  the  "  Wilmington 
Journal "  claiming  boldly  that  the  matter  was  not  one  which 
concerned  the  few  persons  of  the  Jewish  faith,  but  the  reputa- 
tion of  the  State  of  North  Carolina.83 

Isaac  Leeser,  however,  continued  the  agitation.  In  De- 
cember, 1858,  a  long  dignified  letter  appeared  from  his  pen 
in  the  Philadelphia  "  Evening  Journal,"  in  which  he  called 
the  attention  of  the  American  public  generally  to  the  disquali- 
fications then  existing  both  in  North  Carolina  and  in  New 
Hampshire,84  but  the  slavery  issue  and  the  events  preceding 
the  great  Civil  War  soon  crowded  out  all  other  considerations. 

Another  effort  was  made  when  the  Constitutional  Conven- 
tion met  in  1861 ;  and  Leeser's  "  Occident "  and  other 
periodicals  state  that  the  desired  result  was  actually  accom- 

82  The  Chairman  of  the  Committee  was  John  Kerr,  who  had  rep- 
resented the  State  in  Congress,  and  later  became  Judge  of  the 
Superior  Court. 

The  report  is  also  given  in  "  The  Occident,"  Vol.  16,  p.  503. 
The  bill  itself  was  finally  tabled. 

83  See  also  "  Occident,"  Vol.  16,  p.  503,  etc. 

M  See  ibid.,  p.  531.  New  Hampshire  did  not  abolish  the  dis- 
qualification until  1876. 


66  American  Jewish,  Historical  Society. 

! 

i 

plished.S5  Investigation  proves,  however,  that  this  was  by  no 
means  the  case.  The  Journal  of  the  Convention  shows  that 
that  body  met  at  Ealeigh  May  20,  1861,  voted  for  secession, 
joined  the  Confederacy,  and  then  proceeded  to  a  revision  of 
the  State  Constitution.  The  question  of  the  test  was  brought 
up  on  June  11, 1861,  and  Mr.  Buffin's  amendment  was  carried, 
making  the  objectionable  clause  read  as  follows :  "  That  no 
person  who  shall  deny  the  Being  of  God  or  the  Divine  Author- 
ity of  both  the  Old  and  the  New  Testaments,  or  who  shall 
hold  religious  opinions  incompatible  with  the  freedom  and 
safety  of  the  State,  shall  be  capable  of  holding  any  office  or 
place  of  trust  or  profit  in  the  Civil  Department  within  this 
State." 

Mr.  Biggs  then  moved  the  following  amendment,  striking 
out  all  after  the  ordaining  clause  and  inserting  "  No  religious 
test  shall  ever  be  required  as  a  qualification  to  any  office  or 
public  trust  in  this  State."  This  amendment  was  lost  by  a 
vote  of  33  to  69.SB 

After  the  war,  and  in  connection  with  the  reconstruction, 
another  Convention  met  at  Ealeigh  in  1865.  Though  it  ap- 
pears from  contemporary  newspapers  that  Jewish  emancipa- 

^Ibid.,  Vol.  24,  p.  281.  Speaking  about  the  proposed  Consti- 
tution of  1865,  Leeser  wrote:  "  We  at  once  dreaded  that  the  con- 
cessions made  to  Israelites  in  the  Convention  which  voted  the 
State  out  of  the  Union,  would  be  stricken  out  from  the  new  fun- 
damental law." 

88  Journal  of  the  Convention  of  the  People  of  North  Carolina, 
held  on  the  20th  day  of  May,  A.  D.  1861,  Raleigh,  1862,  pp.  90-2. 

Thomas  Ruffin  (1787-1870).  Speaker  of  the  Legislature,  1816, 
Chief  Justice  of  North  Carolina,  1829-52.  See  Appleton's  Cyc.  of 
Amer.  Biog. 

Asa  Biggs  represented  North  Carolina  both  in  Congress  (1845) 
and  in  the  U.  S.  Senate  (1854-8).  In  1858  he  became  Judge  of 
the  U.  S.  District  Court  of  North  Carolina.  See  Appleton's  Cyc. 
of  Amer.  Biog. 


Religious  Liberty  in  North  Carolina — EuJiner.        67 

tion  was  agitated,  the  Convention  Journal  shows  no  trace 
of  it.87 

American  Jews  generally  now  became  interested  however. 
In  September,  1866,  the  "  Occident "  published  the  follow- 
ing :  "  When  we  heard  last  year  that  a  Convention  was  about 
to  meet  in  North  Carolina,  for  the  purpose  of  revising  the 
State  Constitution,  we  urged  the  few  of  our  persuasion  we 
met  from  time  to  time  to  watch  over  the  doings  of  the  Con- 
vention ....  The  Executive  Committee  of  the  Board  of 
Delegates  on  learning  of  the  passage  of  the  clause  referred  to, 
at  once  issued  a  notice  or  appeal  to  the  people  of  North  Caro- 
lina, ....  but  as  the  Constitution  has  been  adopted  by  the 
Convention,  of  course  the  appeal  came  too  late  and  is  in  fact 
perfectly  useless.  If  the  people  have  ratified  the  doings  of 
their  servants,  the  only  remedy  is  by  agitation,  to  excite  the 
popular  attention  to  the  injustice  done  us,  and  thus  obtain 
perchance  through  future  legislation,  a  repeal  of  the  ob- 
noxious clause.  We  have  already  spoken  to  resident  Israelites 
on  the  subject  and  we  are  confident  that  it  will  not  be  allowed 
to  lie  dormant.  Not  that  we  care  for  Jews  holding  office, 
but  for  the  principle  and  this  we  would  do  if  there  were  even 
no  one  fit  to  serve  the  State."  "" 

The  "  Augusta  Sentinel "  sympathized  with  the  movement,89 
and  from  a  subsequent  number  of  the  "  Occident "  it  appears 
that  the  proposed  Constitution  was  rejected  by  the  people, 

87  Journal  of  the  Convention  of  the  State  of  North  Carolina, 
1865-1866,  Raleigh,  1866,  p.  51. 

88  See  also  "  The  Occident,"  Vol.  24,  p.  281. 

88  The  "Augusta  (Georgia)  Sentinel"  used  the  following  lan- 
guage in  this  connection :  "  North  Carolina  occupies  the  unen- 
viable position  of  being  the  only  State  in  the  Union  which  pre- 
scribes any  religious  test  as  a  qualification  for  office."  The  article 
then  makes  an  appeal  for  toleration  and  alludes  to  the  patriotism 
of  the  Jews  of  the  Confederacy  during  the  Civil  War.  See  also 
"  Occident,"  Vol.  24,  p.  281,  etc. 


68  American  Jewish  Historical  Society. 

though  on  other  grounds.9"  Leeser  once  again  earnestly  urged 
the  matter,  but  in  vain,  and  it  was  not  until  the  Constitutional 
Convention  of  1868  that  Jewish  emancipation  was  accom- 
plished. Strangely  enough  there  appears  to  have  been  no 
debate  on  the  latter  occasion.  When  the  report  of  the  Com- 
mittee on  Suffrage  and  Eligibility  to  office  was  called  for,  the 
clause  was  thus  worded : 9l  "  The  following  classes  of  persons 
shall  be  disqualified  for  office : 

"  1.  All  persons  who  shall  deny  the  Being  of  Almighty  God. 

"2.  All  persons  who  shall  have  been  convicted  of  treason, 
etc." 

There  was  a  strong  minority  report  it  is  true,  but  it  re- 
lated mainly  to  negro  disqualification.  The  elimination  of 
the  test  was  apparently  taken  as  a  matter  of  course.92  No 
change  has  been  made  since  1868,  so  that,  at  present,  the  only 
persons  debarred  from  holding  office  in  North  Carolina  are 
atheists  and  infidels. 

APPENDIX. 

SPEECH  OF  MR.  JACOB  HENRY. 

I  certainly,  Mr.  Speaker,  know  not  the  design  of  the  Decla- 
ration of  Rights  made  by  the  people  of  this  State  in  the  year 
1776,  if  it  was  not  to  consecrate  certain  great  and  fundamental 
rights  and  principles,  which  even  the  Constitution  cannot  impair; 
for  the  44th  section  of  the  latter  instrument  declares  that  the 
Declaration  of  Rights  ought  never  to  be  violated,  on  any  pretense 
whatever;  if  there  is  any  apparent  difference  between  the  two 
instruments,  they  ought,  if  possible,  to  be  reconciled;  but  if  there 
is  a  final  repugnance  between  them,  the  Declaration  of  Rights 
must  be  considered  paramount;  for  I  believe  it  is  to  the  Consti- 

"IMd.,  p.  382. 

91  Journal  of  the  Constitutional  Convention  of  the  State  of  North 
Carolina,  1868,  Raleigh,  1868,  p.  233.  (Report  of  the  Committee 
on  Suffrage  and  Eligibility  to  Office.)  Constitution,  Article  6. 
Section  5.     See  also  pp.  235-8. 

M  IMd. 


Religious  Liberty  in  North  Carolina — Hiihner.        69 

tution,  as  the  Constitution  is  to  law;  it  controls  and  directs  it 
absolutely  and  conclusively.  If,  then,  a  belief  in  the  Protestant 
religion  is  required  by  the  Constitution  to  qualify  a  man  for  a 
seat  in  this  house,  and  such  qualification  is  dispensed  with  by  the 
Declaration  of  Rights,  the  provision  of  the  Constitution  must  be 
altogether  inoperative;  as  the  language  of  the  Bill  of  Rights  is, 
"  that  all  men  have  a  natural  and  inalienable  right  to  worship 
Almighty  God  according  to  the  dictates  of  their  own  consciences." 
It  is  undoubtedly  a  natural  right,  and  when  it  is  declared  to  be 
an  inalienable  one  by  the  people  in  their  sovereign  and  original 
capacity,  any  attempt  to  alienate  either  by  the  Constitution  or  by 
law,  must  be  vain  and  fruitless. 

It  is  difficult  to  conceive  how  such  a  provision  crept  into  the 
Constitution,  unless  it  is  from  the  difficulty  the  human  mind  feels 
in  suddenly  emancipating  itself  from  fetters  by  which  it  has  long 
been  enchained ;  and  how  adverse  it  is  to  the  feelings  and  manners 
of  the  people  of  the  present  day  every  gentleman  may  satisfy 
himself  by  glancing  at  the  religious  belief  of  the  persons  who 
fill  the  various  offices  in  this  State:  there  are  Presbyterians, 
Lutherans,  Calvinists,  Mennonists,  Baptists,  Trinitarians,  and 
Unitarians.  But,  as  far  as  my  observation  extends,  there  are 
fewer  Protestants,  in  the  strict  sense  of  the  word,  used  by  the 
Constitution,  than  of  any  other  persuasion;  for  I  suppose  that 
they  meant  by  it,  the  Protestant  religion  as  established  by  the 
law  in  England.  For  other  persuasions  we  see  houses  of  worship 
in  almost  every  part  of  the  State,  but  very  few  of  the  Protestant; 
so  few,  that  indeed  I  fear  that  the  people  of  this  State  would  for 
some  time  remain  unrepresented  in  this  House,  if  that  clause  of 
the  Constitution  is  supposed  to  be  in  force.  So  far  from  believ- 
ing in  the  Thirty-nine  Articles,  I  will  venture  to  assert  that  a 
majority  of  the  people  never  have  read  them. 

If  a  man  should  hold  religious  principles  incompatible  with  the 
freedom  and  safety  of  the  State,  I  do  not  hesitate  to  pronounce 
that  he  should  be  excluded  from  the  public  councils  of  the  same; 
and  I  trust  if  I  know  myself,  no  one  would  be  more  ready  to  aid 
and  assist  than  myself.  But  I  should  really  be  at  a  loss  to 
specify  any  known  religious  principles  which  are  thus  danger- 
ous. It  is  surely  a  question  between  a  man  and  his  maker,  and 
requires  more  than  human  attributes  to  pronounce  which  of  the 
numerous  sects  prevailing  in  the  world  is  most  acceptible  to  the 
Deity.  If  a  man  fulfils  the  duties  of  that  religion,  which  his 
education  or  his  conscience  has  pointed  to  him  as  the  true  one. 


70  American  Jewish  Historical  Society. 

no  person,  I  hold,  in  this  our  land  of  liberty,  has  a  right  to 
arraign  him  at  the  bar  of  any  inquisition;  and  the  day,  I  trust, 
has  long  passed,  when  principles  merely  speculative  were  propa- 
gated by  force;  when  the  sincere  and  pious  were  made  victims, 
and  the  light-minded  bribed  into  hypocrites. 

The  purest  homage  man  could  render  to  the  Almighty  was  in 
the  sacrifice  of  his  passions  and  the  performance  of  his  duties. 
That  the  ruler  of  the  universe  would  receive  with  equal  benignity 
the  various  offerings  of  man's  adoration,  if  they  proceeded  from 
the  heart.  Governments  only  concern  the  actions  and  conduct 
of  man,  and  not  his  speculative  notions.  Who  among  us  feels 
himself  so  exalted  above  his  fellows  as  to  have  a  right  to  dictate 
to  them  any  mode  of  belief?  Shall  this  free  country  set  an 
example  of  persecution,  which  even  the  returning  reason  of  en- 
slaved Europe  would  not  submit  to?  Will  you  bind  the  conscience 
in  chains,  and  fasten  convictions  upon  the  mind  in  spite  of  the 
conclusions  of  reason  and  of  those  ties  and  habitudes  which  are 
blended  with  every  pulsation  of  the  heart?  Are  you  prepared  to 
plunge  at  once  from  the  sublime  heights  of  moral  legislation  into 
the  dark  and  gloomy  caverns  of  superstitious  ignorance?  Will 
you  drive  from  your  shores  and  from  the  shelter  of  your  consti- 
tution, all  who  do  not  lay  their  oblations  on  the  same  altar, 
observe  the  same  ritual,  and  subscribe  to  the  same  dogmas? 
If  so,  which,  among  the  various  sects  into  which  we  are  divided, 
shall  be  the  favored  one? 

I  should  insult  the  understanding  of  this  House,  to  suppose  it 
possible  that  they  could  ever  assent  to  such  absurdities;  for  all 
know  that  persecution  in  all  its  shapes  and  modifications,  is  con- 
trary to  the  genius  of  our  government  and  the  spirit  of  our  laws, 
and  that  it  can  never  produce  any  other  effect  than  to  render  men 
hypocrites  or  martyrs. 

When  Charles  V,  Emperor  of  Germany,  tired  of  the  cares  of 
government,  resigned  his  crown  to  his  son,  he  retired  to  a  mon- 
astery, where  he  amused  the  evening  of  his  life  in  regulating 
the  movements  of  watches,  endeavoring  to  make  a  number  to  keep 
the  same  time;  but,  not  being  able  to  make  any  two  to  go  ex- 
actly alike,  it  led  him  to  reflect  upon  the  folly  and  crimes  he  had 
committed,  in  attempting  the  impossibility  of  making  men  think 
alike! 

Nothing  is  more  easily  demonstrated  than  that  the  conduct 
alone  is  the  subject  of  human  laws,  and  that  man  ought  to  suffer 
civil  disqualification  for  what  he  does,  and  not  for  what  he  thinks. 


Religious  Liberty  in  North  Carolina — Huhner.        71 

The  mind  can  conceive  laws  only  from  Him,  of  whose  Divine 
essence  it  is  a  portion;  He  alone  can  punish  disobedience;  for 
who  else  can  know  its  movements,  or  estimate  their  merits? 
The  religion  I  profess,  inculcates  every  duty  which  man  owes  to 
his  fellow  men;  it  enjoins  upon  its  votaries  the  practice  of  every 
virtue,  and  the  detestation  of  every  vice;  it  teaches  them  to  hope 
for  the  favor  of  heaven  exactly  in  proportion  as  their  lives  have 
been  directed  by  just,  honorable,  and  beneficent  maxims.  This, 
then,  gentlemen,  is  my  creed;  it  was  impressed  upon  my  infant 
mind,  it  has  been  the  director  of  my  youth,  the  monitor  of  my 
manhood,  and  will,  I  trust,  be  the  consolation  of  my  old  age. 
At  any  rate,  Mr.  Speaker,  I  am  sure  that  you  cannot  see  anything 
in  this  religion,  to  deprive  me  of  my  seat  in  this  house.  So  far 
as  relates  to  my  life  and  conduct,  the  examination  of  these  I 
submit  with  cheerfulness  to  your  candid  and  liberal  construction. 
What  may  be  the  religion  of  him  who  made  this  objection  against 
me,  or  whether  he  has  any  religion  or  not  I  am  unable  to  say. 
I  have  never  considered  it  my  duty  to  pry  into  the  belief  of  other 
members  of  this  house.  If  their  actions  are  upright  and  conduct 
just,  the  rest  is  for  their  own  consideration,  not  for  mine.  I  do 
not  seek  to  make  converts  to  my  faith,  whatever  it  may  be 
esteemed  in  the  eyes  of  my  officious  friend,  nor  do  I  exclude 
anyone  from  my  esteem  or  friendship,  because  he  and  I  differ  in 
that  respect.  The  same  charity,  therefore,  it  is  not  unreasonable 
to  expect,  will  be  extended  to  myself,  because  in  all  things  that 
relate  to  the  State  and  to  the  duties  of  civil  life,  I  am  bound  by 
the  same  obligations  with  my  fellow-citizens,  nor  does  any  man 
subscribe  more  sincerely  than  myself  to  the  maxim,  "  Whatever 
ye  would  that  men  should  do  unto  you,  do  ye  so  even  unto  them, 
for  such  is  the  law  and  the  prophets." 


THE  LIBRARY  OF  THE 

UNIVERSITY  OF 

NORTH  CAROLINA 


THE  COLLECTION  OF 
NORTH  CAROLINIANA 


H8BS 


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